Judith A. McKoy, Complainant,v.Norman Y. Mineta, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionMar 14, 2002
07A10010_01A10533 (E.E.O.C. Mar. 14, 2002)

07A10010_01A10533

03-14-2002

Judith A. McKoy, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.


Judith A. McKoy v. Department of Transportation

07A10010 & 01A10533

03-14-02

.

Judith A. McKoy,

Complainant,

v.

Norman Y. Mineta,

Secretary,

Department of Transportation,

Agency.

Appeal Nos. 07A10010 & 01A10533

Agency Nos. 3983003, 3983061, 3983100

Hearing Nos. 110-98-8393X, 110-98-8278X, 110-98-8298X

DECISION

Concurrent with the issuance of its September 22, 2000 final order,

the agency filed a timely appeal which the Commission accepts pursuant

to 29 C.F.R. � 1614.405.<1>

Complainant, an Operations Manager, FG-301-14 employed at the agency's

Federal Aviation Administration (FAA), Southern Region Headquarters,

College Park, Georgia location, filed formal EEO complaints with the

agency on October 20, 1997, April 10, 1998, and September 10, 1998,

respectively, alleging that she was subjected to unlawful discrimination

in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as

amended, 42 U.S.C. � 2000e et seq. Specifically, complainant alleged that

she was discriminated against on the bases of race (White), sex (female)

and reprisal for prior EEO complaint activity under Title VII when:

she was subjected to a hostile work environment when, among other things,

her authority was undermined, and she was disrespected by communications

and excluded from decision-making processes;

she was subjected to retaliation and a hostile environment when, among

other things, her duties and responsibilities were systematically taken

away; and

she was non-selected for the FG-301-15 position in 1998.

At the conclusion of the investigation, complainant was provided a copy of

the investigative report and requested a hearing before an Administrative

Judge (AJ). The AJ consolidated the three cases.

Following a hearing, the AJ found no discrimination in the first and third

cases, but found that complainant had proved reprisal in the second case.

The AJ ordered a hearing for compensatory damages.

The AJ held a two day hearing on damages. Thereafter, by decision

dated August 11, 2000, the AJ awarded complainant expenses related to

medical treatment, including $13,599.59 for medical charges, physical

therapy, medical tests and exams, and medicine, $235.50 for parking, and

$1,694.22 for mileage, for a total of $15,529.31 in pecuniary damages.

The AJ also awarded complainant $4,000.00 for future medical expenses

and $50,000.00 in non-pecuniary damages.

The AJ also awarded equitable relief. Specifically, this included

restoration of the complainant's duties assigned to her when she filed

her first EEO complaint, all due respect due her position, including

being invited to all agency meetings to which her position normally

would attend; removal of negative comments in her performance appraisals

since filing her first EEO complaint; assurance of no further reprisals,

and reimbursement of the leave complainant took in 1999, totaling 1,184

hours of sick leave and 322 hours of annual leave. Further, the AJ

awarded the complainant $16,886.75 in attorneys fees and $103 in costs.

The AJ also ordered the posting of a nondiscrimination notice.

On September 22, 2000, the agency issued a Final Agency Order modifying

only that part of the AJ's decision related to the non-pecuniary

damages award of $50,000.00. On appeal, the agency argues that the

non-compensatory damages award should be reduced from $50,000.00 to

$15,000.00, as is supported by the facts, circumstances in this matter

and precedent.

After a careful review of the record, we discern no basis to disturb

the AJ's award of non-pecuniary compensatory damages. To receive an

award of compensatory damages, a complainant must demonstrate that she

has been harmed as a result of the agency's discriminatory action; the

extent, nature and severity of the harm; and the duration or expected

duration of the harm. Rivera v. Department of the Navy, EEOC Appeal

No. 01934157 (July 22, 1994), request for reconsideration denied, EEOC

Request No. 05940927 (December 11, 1995); Compensatory and Punitive

Damages Available Under Section 102 of the Civil Rights Act of 1991,

EEOC Notice No. N 915.002 at 11-12, 14 (July 14, 1992). An award of

compensatory damages for non-pecuniary losses, including emotional harm,

should reflect the extent to which the respondent directly or proximately

caused the harm, and the extent to which other factors also caused the

harm. The Commission has held that evidence from a health care provider

is not a mandatory prerequisite for recovery of compensatory damages.

Carpenter v. Department of Agriculture, EEOC Appeal No. 01945652 (July

17, 1995). Courts have also held that �expert testimony ordinarily is

not required to ground money damages for mental anguish or emotional

distress.� Sanchez v. Puerto Rico Oil Co., 37 F.3d 712, 724 (1st

Cir. 1994), citing Wulf v. City of Wichita, 883 F.2d 842, 875 (10th

Cir. 1989); Busche v. Burkee, 649 F.2d 509, 512n. 12 (7th Cir.), cert

denied, 454 U.S. 897 (1981). A complainant's own testimony, along with

the circumstances of a particular case, can suffice to sustain his/her

burden in this regard.

The Commission notes that damage awards for emotional harm are difficult

to determine and that there are no definitive rules governing the amount

to be awarded in given cases. A proper award should be consistent with

awards made in similar cases. The Commission awards compensatory damages

based on the extent of the damages proved. See Ward-Jenkins v. Department

of the Interior, EEOC Appeal No. 01961483 (March 4, 1999) ($50,000,00

award for pain and suffering after being detailed and reassigned,

suffered a diagnosed acute distress disorder, and aggravation of her

depressive condition which was expected to last five years. During the

first two years, the employee lost energy, enjoyment in activities,

ceased recreating and socializing, became unkempt in appearance, was

anxious, had difficulty concentrating, had insomnia and nightmares,

and gained 100 pounds).

Based on the foregoing, we find that the AJ correctly determined that

complainant is entitled to an award of non-pecuniary damages in the amount

of $50,000.00 for pain and suffering experienced in connection with the

underlying harassment. In so finding, the Commission notes that the

record demonstrates that complainant suffered, and continues to suffer

emotional harm consisting of major depression, loss of respect at work,

increased frequency of headaches, stress, anxiety and fear of losing

her job, among other things. Complainant's husband and her physicians

indicated that as a result of work-related stress, complainant began

seeing a chiropractor for almost continuous severe headaches for which

she was taking up to ten or twelve or more Advil a day. She experienced

chest pains and severe muscle spasms which were also attributed to

work-related stress. Complainant was referred to a psychologist,

and physical therapy was ordered, as well as antidepressants.

Complainant's physician noted that although the medication prescribed

to her helped somewhat, complainant continued to have problems sleeping

too much and/or waking up during the night. In 1999, complainant began

seeing a psychiatrist and continues to see her. We also note that as

a result of work related stress in March 1999, complainant was ordered

off of the job by her physician and did not return until January 2000.

Further, the testimony is unrebutted that prior to her transfer to the

office in question, complainant saw a physician only once a year for her

annual physical. Given the facts in this case, we find, as did the AJ,

that complainant is entitled to an award of $50,000.00 in non-pecuniary

compensatory damages for pain and suffering resulting from reprisal.

The complainant is a prevailing party. If she wishes to apply for

additional attorney fees and costs incurred after the AJ's award of

fees and costs, she may do so in accordance with the instructions in

the paragraph below entitled �Attorney's Fees.�

As such, the Commission MODIFIES the agency's final order and REMANDS

the matter to the agency to take corrective action in accordance with

this decision and the Order below.

ORDER

To the extent that it has not already done so, the agency is ORDERED to

take the following remedial action:

The agency shall pay the complainant non-pecuniary compensatory damages

in the amount of $50,000.00, within sixty (60) calendar days of the date

this decision becomes final.

Reinstatement of 322 hours of annual leave.

Reinstatement of 1,184 hours of sick leave.

Pay for future medical expenses in the amount of $4,000.

Payment of attorney fees in the amount of $16,886.75, and $103.00

for costs.

Return of all duties and responsibilities held prior to filing of first

complaint.

Inclusion in all agency meetings to which complainant's position normally

would be invited.

Take steps to assure that no further retaliation is taken against

complainant.

Removal of all negative comments in her performance appraisals since

the filing of her first EEO complaint through August 11, 2000.

The agency shall take corrective, curative and preventative action to

ensure that reprisal discrimination does not recur. This shall include,

but is not limited to, providing training on employment discrimination

laws for the agency officials involved in claim 2 of complainant's

complaint, including her manager and supervisor during the relevant time

period. Within thirty (30) calendar days of the date the training is

completed, the agency shall submit to the compliance officer appropriate

documentation evidencing completion of such training. Further, the

agency shall consider taking disciplinary action against the manager and

supervisor identified as being responsible for the discriminatory reprisal

perpetrated against complainant. The agency shall report its decision.

If the agency decides to take disciplinary action, it shall identify the

action taken. If the agency decides not to take disciplinary action, it

shall set forth the reason(s) for its decision not to impose discipline.

The agency is further directed to submit a report of compliance, as

provided in the statement entitled �Implementation of the Commission's

Decision.� The report shall include supporting documentation verifying

that the corrective action has been implemented. The agency shall send

a copy of this report, with a copy of all supporting documentation,

to complainant.

POSTING ORDER (G0900)<2>

The agency is ordered to post at its Atlanta, Georgia facility copies of

the attached notice. Copies of the notice, after being signed by the

agency's duly authorized representative, shall be posted by the agency

within thirty (30) calendar days of the date this decision becomes final,

and shall remain posted for sixty (60) consecutive days, in conspicuous

places, including all places where notices to employees are customarily

posted. The agency shall take reasonable steps to ensure that said

notices are not altered, defaced, or covered by any other material.

The original signed notice is to be submitted to the Compliance Officer

at the address cited in the paragraph entitled "Implementation of the

Commission's Decision," within ten (10) calendar days of the expiration

of the posting period.

ATTORNEY'S FEES (H0900)

If complainant has been represented by an attorney (as defined by

29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of

reasonable attorney's fees incurred in the processing of the complaint.

29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid

by the agency. The attorney shall submit a verified statement of fees

to the agency -- not to the Equal Employment Opportunity Commission,

Office of Federal Operations -- within thirty (30) calendar days of this

decision becoming final. The agency shall then process the claim for

attorney's fees in accordance with 29 C.F.R. � 1614.501.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the complainant. If the agency does not comply with the Commission's

order, the complainant may petition the Commission for enforcement

of the order. 29 C.F.R. � 1614.503(a). The complainant also has the

right to file a civil action to enforce compliance with the Commission's

order prior to or following an administrative petition for enforcement.

See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).

Alternatively, the complainant has the right to file a civil action on

the underlying complaint in accordance with the paragraph below entitled

"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.

A civil action for enforcement or a civil action on the underlying

complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)

(1994 & Supp. IV 1999). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 29 C.F.R. � 1614.409.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

The Commission may, in its discretion, reconsider the decision in this

case if the complainant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. The appellate decision involved a clearly erroneous interpretation

of material fact or law; or

2. The appellate decision will have a substantial impact on the policies,

practices, or operations of the agency.

Requests to reconsider, with supporting statement or brief, must be filed

with the Office of Federal Operations (OFO) within thirty (30) calendar

days of receipt of this decision or within twenty (20) calendar days of

receipt of another party's timely request for reconsideration. See 29

C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for

29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests

and arguments must be submitted to the Director, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. In the absence of a legible postmark, the

request to reconsider shall be deemed timely filed if it is received by

mail within five days of the expiration of the applicable filing period.

See 29 C.F.R. � 1614.604. The request or opposition must also include

proof of service on the other party.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request. Any supporting documentation

must be submitted with your request for reconsideration. The Commission

will consider requests for reconsideration filed after the deadline only

in very limited circumstances. See 29 C.F.R. � 1614.604(c).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)

You have the right to file a civil action in an appropriate United States

District Court within ninety (90) calendar days from the date that you

receive this decision. If you file a civil action, you must name as

the defendant in the complaint the person who is the official agency head

or department head, identifying that person by his or her full name and

official title. Failure to do so may result in the dismissal of your

case in court. "Agency" or "department" means the national organization,

and not the local office, facility or department in which you work. If you

file a request to reconsider and also file a civil action, filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1199)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request that the Court appoint

an attorney to represent you and that the Court permit you to file the

action without payment of fees, costs, or other security. See Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;

the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).

The grant or denial of the request is within the sole discretion of

the Court. Filing a request for an attorney does not extend your time

in which to file a civil action. Both the request and the civil action

must be filed within the time limits as stated in the paragraph above

("Right to File A Civil Action").

FOR THE COMMISSION:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

____03-14-02______________

Date

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

An Agency of the United States Government

This Notice is posted pursuant to an order by the United States Equal

Employment Opportunity Commission dated ___________ which found that

a violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. � 2000e et seq., has occurred at the agency's facility in

Atlanta, Georgia (hereinafter "facility").

Federal law requires that there be no discrimination against any employee

or applicant for employment because of the person's RACE, COLOR, RELIGION,

SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect to hiring, firing,

promotion, compensation, or other terms, conditions or privileges of

employment.

This facility was found to have retaliated against an employee.

Accordingly, this facility was ordered to proffer this employee "make

whole" relief and award the employee with compensatory damages and

attorney fees incurred in the processing of the complaint. This facility

was ordered to ensure that officials responsible for personnel decisions

and terms and conditions of employment will abide by the requirements

of all federal equal employment opportunity laws and will not retaliate

against employees who file EEO complaints.

This facility will comply with federal law and will not in any manner

restrain, interfere, coerce, or retaliate against any individual who

exercises his or her right to oppose practices made unlawful by, or

who participates in proceedings pursuant to, federal equal employment

opportunity law.

Date Posted: _____________________

Posting Expires: _________________

29 C.F.R. Part 1614

1 On October 21, 2000, complainant also filed an appeal (01A10533)

regarding this case. Complainant maintains that the agency has failed

to fully implement the EEOC decision. In deciding this case, we are

consolidating complainant's appeal with the agency's appeal (07A10010).

2To the extent that it has not already done so, the agency is Ordered

to post the attached Notice.